Plant variety protection can be confusing but it is important to protect the intellectual property rights of plant breeders. Protection of plants is covered by the Plant Patent Act of 1930, the Patent Act of 1952, and the Plant Variety Protection Act of 1970. The Plant Patent Act and Plant Variety Protection Act provide protection based on different types of plant reproduction. Protection under the Patent Act is a utility patent.
The Plant Patent Act of 1930 provides protection of asexually propagated plant varieties excluding those propagated by tubers. The cultivar must be distinct from any other cultivar. The plant breeder controls the propagation and sale of the cultivar for a period of 20 years. Anyone who sells the cultivar without permission from the patent owner can be prosecuted.
A plant growing wild is not patentable, but the novel use of that plant or the novel use of a gene found in that plant can be protected with a utility patent for a period of 20 years. Utility patents are often used by biotechnology companies to control the novel use of specific genes and technologies.
The Plant Variety Protection Act (PVPA) of 1970 provides protection of sexually propagated plant varieties and includes tuber propagated plant varieties as well. There are four requirements for a plant variety to be eligible for a plant variety certificate. The first is that it must be new. The second is that it must be distinct from any other known variety. This may be based on one or more identifiable characteristics.
The third is that the variety must be uniform in that any variation is predictable and acceptable. The fourth is that the variety must be stable. When reproduced, the distinct characteristics of the variety will remain unchanged.
A plant variety certificate gives the breeder the right to exclude anyone from reproducing, selling, importing, or exporting the variety. The breeder can also exclude using the variety to produce a hybrid or different variety. The length of protection is 20 years except for trees and vines, in which case the term is 25 years.
There are three exemptions that limit the plant breeder's exclusive right. The first exemption safeguards the public's interest in wide usage. If an owner is unable to meet public demand at a fair price, the USDA may declare the protected variety open. The second exemption allows the use of the variety in research. The third exemption permits farmers to save and replant the seed on their own farms.
Although this control provides an opportunity for the originator to profit from the investment in plant breeding, I think Thomas Edison said it best when he testified before Congress in support of the Plant Patent Act of 1930. He testified that, "This will, I feel sure, give us many Burbanks." He was referencing Luther Burbank, a horticulturist who was issued several plant patents posthumously.